Are You Smarter than a Sitting Congressman? Tenth Amendment Edition

At least in recent memory, the GOP’s affinity for the Constitution has been a cyclical, uncertain beast, waxing and waning depending on who’s in power, and what’s up for debate. If we’re under a Republican President, and the issue is the war on terror, then it becomes all-too-clear that the Constitution, despite being drafted within living memory of an insurgency-based war fought on American soil, was never intended to apply strictly in wartime. Under a Democratic President, though, when not mere lives but money and taxes are up for debate – well, that’s another story entirely!

In cases like the latter, as my estimable co-blogger reported, GOP headliners like Michele Bachmann (R-MN) will demand that executive branch officials point out the precise Article, section, and clause of the Constitution justifying the legislative enactment from which they draw their authority. Yes, that’s right: Bachmann, a “law school” graduate, actually wonders by what authority Congress can constitutionally regulate interstate commerce. Hmm. It’s not a pretty sight.

Sadly, Bachmann has (dare I say?) “comrades” in ignorance. They’re nineteen fellow representatives, led by John Shadegg (R-AZ), pushing an “Enumerated Powers Act,” theoretically requiring that:

Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. The availability of this point of order does not affect any other available relief.

Now, I’m no big city lawyer, and I certainly agree that Congress has an independent duty to obey the Constitution, but I fail to see how giving legislators the equivalent of a “nag screen” will deter unconstitutional lawmaking. Legislators should already be prepared to constitutionally justify proposed legislation and, if they aren’t, a point of order asking legislators to invent a justification on the spot hardly seems like the remedy Shadegg & co. imagine it to be (“Commerce Clause!” “Enforcement Clause!” etc. etc.). The problem Shadegg wants to address is an overbroad construction of enumerated powers – which his Bill is powerless to prevent – not a complete inability to cite authority on point.

Bottom line, the Enumerated Powers Act is just a PR stunt cobbled up as a way of reframing political to government financial policy as constitutional, while foisting on the public an unduly limited idea conception of Congress’ power. Yes, Congress is emphatically a body of “enumerated” powers – but, while enumerated, those powers are broadly phrased ((See, e.g., U.S. Const. Art. I, § 8, cl. 3 (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”))) and to be broadly construed ((“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof…” U.S. Const. Art. I, § 8, cl. 18.)) so as to make them meaningful. The Constitution is a complex document, of which the Tenth Amendment is but a small part. Don’t let the GOP pretend it’s the whole story.



  1. My understanding is that Congress and/or the President are supposed to act/legislate within the Constitution to the best of their judgement. Challenges to the constituionality of a given action are decided by the courts. That’s the system.

    I don’t really see what the problem is with Bachman’s proposal. It forces legislators to go on record as defending their actions on Constitutional grounds. It also forces the opposition to explain their Constitutional objections more clearly.

  2. You’re right about Congress and the President having an independent duty to ensure constitutional compliance. The problem with the EPA (*snort*) is that at best it’s surplusage, and at worst it’s a way for the GOP to grandstand about a minimal, incorrect understanding of constitutional law.

  3. I believe there were a lot of claims of un-constitutionality made about Bush administration actions that were later upheld by the courts…so that ‘incorrect understanding of constitutional law’ seems to exist on both sides of the aisle.

    ‘Surplusage’ could be applied to a lot of things. Many would argue that hate crimes laws fall under that category. I would consider it more about accountability.

  4. Oneiroi · ·

    There were also things that weren’t held up in court that didn’t change anything. Guantanamo for example.

    I’m still annoyed of all this constitutional grandstanding when no one will investigate any possible constitutional violations in the Bush administration, thus continuing the tradition ignoring any that will come in the future as well.

  5. Typically when a President ventures into gray areas of the Constitution i.e. nothing expressly prohibited, when the Courts force him to take a step back that is the end of it.

    If elected officials were constantly in fear of violating the constitution they would be far less willing to push the envelope. If TR had been fearful of the Constitution we wouldn’t have some of our greatest national parks. If FDR had been, we wouldn’t have had the New Deal and maybe not been able to help Britain in the early days of WWII.

  6. There are two problems I have with this proposition. First of all, it is clear to me that the intention is to make it more difficult to propose legislation, not to make proposed legislation better. Bachmann has already demonstrated that she doesn’t believe all these nasty “liberal” programs can be justified constitutionally. She’s wrong. Spiteful legislation is bad legislation.

    Secondly, it won’t work. Congress already tries not to pass overtly unconstitutional legislation. Everything else, constitutional or not, can easily fall under the “commerce clause”, etc. as mentioned in the post. The only way to implement this to effect would be to require a treatise by a legal scholar on the constitutionality of every bill – but that’s what the courts are for.

  7. Honestly, I think this would be a good thing precisely because the enumerated powers have been interpreted broadly, and illustrating that this way might make people realize that and get them on the road towards correcting that. Of course, I say that as someone who believes Jackson (and a unanimous SCOTUS!) was the opposite of right and “questions of the power of Congress are [only] to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.”

  8. Oneiroi · ·

    It seems you quickly went to both sides Mike, unless you think the constiution is important only for congress?

    I just think if these people were serious about protecting the constitution, it wouldn’t reek of self interest but on a conviction of upholding the constitution and investigating wrong doing. Not ignoring it when it comes to their party.

  9. […] (3) the defense of capitalism generally, (3) the “natural born citizen” clause, (4) the Tenth Amendment, or (5) judicial review. I’ve treated the last three points elsewhere (follow the internal […]

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